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Epi Wit & Wisdom Articles
Supreme Court Justice Speaks Out
on the Interdependence of Science and the Law
Says Judiciary is Looking For
Ways to Improve the Quality of the Science It Relies On
“It is common sense to take a
method and try it. If it fails, admit it frankly and try another. But,
above all, try...” This is an FDR quote used by Supreme Court Justice
Stephen G. Breyer in his recent address at the AAAS meeting in
Philadelphia to preface his description of the efforts being made by
the courts to improve the quality of the science upon which
scientifically-related determinations are made. Among the methods
being used are the filing of amicus curiae briefs which help the
judges become more informed about the relevant scientific matters,
pre-trial conferences to narrow the scientific issues in dispute,
pretrial hearings where potential experts are subject to examination
by the court, the appointment of specially trained law clerks or
scientific special masters, and the appointment of independent,
neutral experts.
This latter technique was in the
news recently when the Supreme Court made clear that the law imposes
upon trial judges the duty to become “gatekeepers” with respect to the
admissibility of scientific evidence. According to Breyer, “these
techniques are neutral in principle, favoring neither plaintiffs nor
defendants. When used, they have typically proved successful.”
Interestingly, judges have not
been swift to appoint their own experts. There are many reasons for
this according to Breyer, and the technique raises questions. For
example,
1) Will use of an independent
expert, in effect, substitute that expert’s judgement for that of the
court?
2) Will it inappropriately
deprive the parties of control over the presentation of the case?
3) Will it improperly intrude
upon the proper function of the jury? Where is one to find a truly
neutral expert?
4) Will the search for the
expert create inordinate delay or significantly increase costs?
5) Who will pay the expert?
Some justices have called for a
national register of candidates who could serve as neutral experts,
and the AAAS has begun to work with judiciary organizations to help
create these lists of experts. At present, no organization of
epidemiologists is known to be working with the judicial system in a
similar fashion.
There are several ancillary
questions about these “promising methods” that arise according to
Judge Breyer and both the scientists and the judges must be trained
(in a few hours) in the ways of the other’s profession. It was in this
sense that Breyer invoked FDR and ended his talk with the following
remarks. “I believe that in this age of science we must build legal
foundations that are sound in science, as well as in law. You (AAAS)
have offered your help. We in the legal community should accept that
offer, and we are in the process of doing so. The result, in my view,
will further not only the interests of truth, but also those of
justice. The law will work better to resolve many of the most
important human problems of our time.”
Published March 1998 v
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